IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110006492 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of her earlier request to transfer the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 27 June 2005, from the performance to the restricted section of her Official Military Personnel File (OMPF). 

2.  The applicant states the Article 15 is filed in the performance and restricted sections of her OMPF.  She received this Article 15 more than 6 years ago.  She fully understands and accepts that she used poor judgment.  Since her Article 15, she has:

* proven herself in various duties in supply and logistics
* received a bachelor of business degree and made the Dean's and President's lists
* received the Honorable Order of St. Martin 
* deployed to Afghanistan

3.  The applicant provides:

* Official Department of the Army (DA) photograph
* Enlisted Record Brief (ERB)
* Copies of her DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) from August 2006 through August 2010
* Certificate conferring the Honorable Orders of Saint Martin
* College newsletter showing her name is on the Dean's List
* Deployment orders
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001080 on 22 March 2007.

2.  The applicant provides a DA photograph, ERB, multiple NCOERs, certificates, and deployment orders, which were not previously reviewed by the ABCMR.  The additional document and her argument are considered new evidence that warrants consideration by the Board.

3.  The applicant is a Regular Army (RA) supply sergeant (SSG)/E-6 who initially enlisted in the RA on 16 March 1995.  She served through several reenlistments in a variety of stateside or overseas assignments.  She was assigned to the 312th Military Intelligence Battalion, Fort Hood, TX, at the time. 

4.  On 22 June 2005, while holding the rank/grade of SSG/E-6 and serving as a company supply sergeant and squad leader, in a closed hearing, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

* willfully disobeying an order from a commissioned officer when she was told to elaborate on her sworn statement
* willfully disobeying a lawful order from a commissioned officer when ordered to be "at ease"

5.  Her punishment consisted of a reduction to sergeant (SGT)/E-5 (suspended) and a forfeiture of pay.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant elected not to appeal her punishment.

6.  A review of her OMPF reveals the DA Form 2627 is filed in the performance section of her OMPF.  Additionally, another copy of this Article 15 with allied documents and sworn statements is filed in the restricted section of her OMPF.

7.  On 18 January 2007, the DA Suitability Evaluation Board denied her request to transfer the Article 15 to the restricted section of her OMPF.

8.  On 22 March 2007, the Army Board for Correction of Military Records denied her request to transfer the Article 15 to the restricted section of her OMPF.


9.  Her records show that since the incident in June 2005, she accomplished the following:

* received five NCOERs wherein she was rated successful or excellent and among the best by her rater.  Her senior rater also rated her as successful and superior
* appeared before and selected by the Quartermaster Honorable Order of Saint Martin
* awarded a bachelor of business degree and her name appeared on the Dean's list
* deployed to Afghanistan in support of Operation Enduring Freedom on 
28 April 2011 with the 25th Infantry Division and is tentatively scheduled to return in April 2012
* received the Meritorious Service Medal in June 2007, Army Commendation Medal in June 2010 and August 2008, Army Good Conduct Medal (5th Award) in March 2010, and Army Achievement Medal in April 2007

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 and Table 
2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

12.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to 

maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a SSG in a leadership position, violated the UCMJ and subsequently accepted NJP on 27 June 2005 for willfully disobeying orders.  The imposing commander directed this Article 15 be filed in the performance section of her OMPF.  She elected not to appeal her punishment.  Her NJP proceedings were conducted in accordance with law and regulation and her Article 15 is properly filed in the performance portion of the applicant's OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show the DA Form 2627 is in error or unjust. 

2.  However, there is no doubt that after her mistake in 2005, the applicant has rebounded in an outstanding manner.  She has taken big leaps towards improving herself personally and professionally.  She executed several reenlistments, completed a bachelor's degree, successfully completed several assignments, received outstanding evaluation reports, and is currently deployed in a combat theater.  

3.  Since receipt of the Article 15, she has revealed nothing but a progressively noteworthy advancement, both in achievements and maturity.  She has proven through performance that she is dedicated to bettering herself and generating a positive influence on those with whom she associates.  Her attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of a Soldier who, despite the set-back, has Soldiered on with a strong desire to serve and grow.

4.  The existence of the Article 15 in the performance section of her OMPF is a detractor that sticks out as soon as her records are reviewed.  Therefore, in the interest of justice, the applicant's Article 15 should be transferred to the restricted section of her OMPF.







BOARD VOTE:

___X_____  ____X____  ____X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070001080, dated 22 March 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by moving the Article 15, dated 27 June 2011, and allied documents to include previous denials of her request from the performance section to the restricted section of her OMPF.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110006492



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ABCMR Record of Proceedings (cont)                                         AR20110006492



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